In 2001, the European Commission made two decisions concerning the abuse of a dominant position in the market by collective systems using the Green Dot mark in Germany and France.
On 20 April 2001, the European Commission issued Decision No. 2001/463/EC concerning an abuse of a dominant position by Duales System Deutschland (DSD) in the market for systems for the collection and recycling of packaging waste in Germany. In the given decision the Commission states that DSD did not allow the creation of competitive collection and recovery systems in Germany by concluding trade mark agreements, thus abusing its dominant position.
The decision further states that DSD shall not charge fees for the use of the Green Dot mark on packaging that was provably collected and recovered in another way permitted by law, but the producer or distributor marked its products with the Green Dot mark, because it is a DSD member only for part of its packaging or it is a member of another Member State’s system using the Green Dot mark.
Under a trade mark agreement, licence fees serve solely to cover the costs incurred in collecting, sorting and recovering packaging waste and the associated administrative costs. Therefore, the costs incurred by DSD as a result of the use of the mark can, if anything at all, only be part of the administrative costs. The term "licence fee" is accordingly misleading inasmuch as, even according to the wording chosen by DSD, the fee is intended to reflect first and foremost the costs of services provided by DSD. As long as DSD makes payment of the licence fee dependent on the use of the mark, it imposes unfair prices and commercial terms on undertakings which do not use its services or use them only for a part of the packaging. Article 82(2)(a) of the Treaty Establishing the European Community was thus breached, since the price charged for the particular service is not proportional to the service costs.
The Commission considers the selective marking of packaging not covered by the DSD system to be economically unrealistic. advantages of standardised packaging accruing to distributors as a result of the common market would then no longer be fully within reach. legal standards of public law do not impose on undertakings an obligation to partially waive the use of the Green Dot mark if they use a combination of a self-management solution and complementary participation in an exemption system. packaging regulation thus does not force DSD too abuse its position. Commission decision does not force DSD to breach the provisions of the packaging regulation.
On 15 June 2001, the Commission published Decision 2001/663/EC relating to the breach of Article 81 (1) of the EC Treaty by French Eco-Emballages, a member of Pro Europe, authorized to use the Green Dot mark. Similarly to the preceding decision, the Commission again states that Eco-Emballages shall not request from producers any amount other than a fee for taking over the obligation to collect and recover packaging waste. If a product bearing the Green Dot mark is processed in France by a competitive system, Eco-Emballages does not receive any contribution.
In fulfilling the collection and recovery obligation the following situations may arise:
1. In case of a hybrid system (the producer belongs to Eco-Emballages for some of its packaging and, for the remainder, there is an individual system approved by the authorities of which it is a member or which it has set up), if the packaging covered by the Eco-Emballages system accounts for most of the producer's packaging, the producer is allowed to affix the Green Dot mark to all its packaging, including that covered by its individual system.
2. If, on the other hand, the packaging covered by the individual system accounts for most of the producer's packaging, the producer must normally limit affixing of the Green Dot mark to not more than the quantity covered by the Eco-Emballages system, except where it does not consider this to be adequate and rational. In that eventuality, and as long as it can demonstrate that the individual system achieves recycling and recovery results equivalent to those required by the French authorities of French collective systems, the producer may affix the Green Dot mark to all its packaging.
3. Where the producer is authorised in France to have an individual system for all its packaging and the same types of packaging belong to a collective collection and recovery system using the Green Dot mark in another Member State of the European Economic Area, and as long as it can demonstrate that the individual system achieves recycling and recovery results equivalent to those required by the French authorities of French collective systems, Eco-Emballages will offer the producer a contract allowing it to distribute packaging bearing the Green Dot mark in French territory. It must nevertheless affix to the packaging, in the vicinity of the Green Dot mark, an indication enabling the French consumer to understand clearly that the packaging has not contributed to a French collective system.
Moreover, since 1998 Eco-Emballages has been required, in accordance with the third supplementary agreement concluded with Pro Europe, to grant any competing system, where appropriate, a sublicence with the same territorial and material scope as its principal licence on condition it complies with the requirements for packaging waste collection and recycling referred to in Commission Directive 94/62/EC and certain conditions laid down in advance.
From both Commission decisions it can be understood that the collective system fee is dependent only upon services related to packaging waste collection and recovery and not upon using the Green Dot mark. As a consequence, as long as an obliged person takes advantage of the common market and uses the Green Dot mark to label standardized packaging distributed to several Member States, while it is not a member of the Green Dot system in all of them, it shall not be requested to pay a fee for the use of this mark, especially if it fulfils the obligations resulting from Commission Directive 94/62/EC on packaging as well as national legislation.
August 10th, 2007
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